With scientific explanation of particular facts, the usual practice is to consider some conjunctions of explained facts as not requiring separate explanation, but as being explained by the conjunctions of the explanations of the conjuncts. (If E1 explains e1 and E2 explains e2 then E1 Λ E2 explains e1 Λ e2.) If we required that any two conjuncts and any n-place conjunction had to be explained in some unified fashion, and not merely by the conjunction of separate and disparate explanations, then we would be driven to reject most of the usual explanations and to search for an underlying pattern to explain what appear to be separate facts. (Scientists, of course, often do offer a unified explanation of apparently separate facts.) It would be well worth exploring the interesting consequences of refusing to treat, even in the first instance, any two facts as legitimately separable, as having separate explanations whose conjunction is all there is to the explanation of them. What would our theories of the world look like if we required unified explanations of all conjunctions? Perhaps an extrapolation of how the world looks to paranoid persons. Or, to put it undisparagingly, the way it appears to persons having certain sorts of dope experiences. (For example, the way it sometimes appears to me after smoking marijuana.) Such a vision of the world differs fundamentally from the way we normally look at it; it is surprising at first that a simple condition on the adequacy of explanations of conjunctions leads to it, until we realize that such a condition of adequacy must lead to a view of the world as deeply and wholly patterned.
A similar condition of adequacy on explanations of the moral legitimacy of conjunctions of separate morally legitimate facts would lead to a view that requires sets of holdings to exhibit an overall patterning. It seems unlikely that there will be compelling arguments for imposing such a principle of adequacy. Some may find such a unified vision plausible for only one realm; for example, in the moral realm concerning sets of holdings, but not in the realm of ordinary nonmoral explanation, or vice versa. For the case of explaining nonmoral facts, the challenge would be to produce such a unified theory. Were one produced that introduced novel considerations and explained no new facts (other than conjunctions of old ones) the decision as to its acceptability might be a difficult one and would depend largely on how explanatorily satisfying was the new way we saw the old facts. In the case of moral explanations and accounts which show the moral legitimacy of various facts, the situation is somewhat different. First, there is even less reason (I believe) to suppose a unified explanation appropriate and necessary. There is less need for a greater degree of explanatory unity than that provided when the same underlying principles for generating holdings appear in different explanations. (Rawls’ theory, which contains elements of what he calls pure procedural justice, does not satisfy a strong condition of adequacy for explaining conjunctions and entails that such a condition cannot be satisfied.) Secondly, there is more danger than in the scientific case that the demand for a unified explanation will shape the “moral facts” to be explained. (“It can’t be that both of those are facts for there’s no unified patterned explanation that would yield them both.”) Hence success in finding a unified explanation of such seriously primed facts will leave it unclear how well supported the explanatory theory is.
I turn now to our final positive argument which purports to derive the conclusion that distributive shares shouldn’t depend upon natural assets from the statement that the distribution of natural assets is morally arbitrary. This argument focuses on the notion of equality. Since a large part of Rawls’ argument serves to justify or show acceptable a particular deviation from equal shares (some may have more if this serves to improve the position of those worst off), perhaps a reconstruction of his underlying argument that places equality at its center will be illuminating. Differences between persons (the argument runs) are arbitrary from a moral point of view if there is no moral argument for the conclusion that there ought to be the differences. Not all such differences will be morally objectionable. That there is no such moral argument will seem important only in the case of those differences we believe oughtn’t to obtain unless there is a moral reason establishing that they ought to obtain. There is, so to speak, a presumption against certain differences that can be overridden (can it merely be neutralized?) by moral reasons; in the absence of any such moral reasons of sufficient weight, there ought to be equality. Thus we have argument D:
1. Holdings ought to be equal, unless there is a (weighty) moral reason why they ought to be unequal.
2. People do not deserve the ways in which they differ from other persons in natural assets; there is no moral reason why people ought to differ in natural assets.
3. If there is no moral reason why people differ in certain traits, then their actually differing in these traits does not provide, and cannot give rise to, a moral reason why they should differ in other traits (for example, in holdings).
Therefore,
4. People’s differing in natural assets is not a reason why holdings ought to be unequal.
5. People’s holdings ought to be equal unless there is some other moral reason (such as, for example, raising the position of those worst off) why their holdings ought to be unequal.
Statements similar to the third premiss will occupy us shortly. Here let us focus on the first premiss, the equality premiss. Why ought people’s holdings to be equal, in the absence of special moral reason to deviate from equality? (Why think there ought to be any particular pattern in holdings?) Why is equality the rest (or rectilinear motion) position of the system, deviation from which may be caused only by moral forces? Many “arguments” for equality merely assert that differences between persons are arbitrary and must be justified. Often writers state a presumption in favor of equality in a form such as the following: “Differences in treatment of persons need to be justified.” 41 The most favored situation for this sort of assumption is one in which there is one person (or group) treating everyone, a person (or group) having no right or entitlement to bestow the particular treatment as they wish or even whim. But if I go to one movie theater rather than to another adjacent to it, need I justify my different treatment of the two theater owners? Isn’t it enough that I felt like going to one of them? That differences in treatment need to be justified does fit contemporary governments. Here there is a centralized process treating all, with no entitlement to bestow treatment according to whim. The major portion of distribution in a free society does not, however, come through the actions of the government, nor does failure to overturn the results of the localized individual exchanges constitute “state action.” When there is no one doing the treating, and all are entitled to bestow their holdings as they wish, it is not clear why the maxim that differences in treatment must be justified should be thought to have extensive application. Why must differences between persons be justified? Why think that we must change, or remedy, or compensate for any inequality which can be changed, remedied, or compensated for? Perhaps here is where social cooperation enters in: though there is no presumption of equality (in, say, primary goods, or things people care about) among all persons, perhaps there is one among persons cooperating together. But it is difficult to see an argument for this; surely not all persons who cooperate together explicitly agree to this presumption as one of the terms of their mutual cooperation. And its acceptance would provide an unfortunate incentive for well-off persons to refuse to cooperate with, or to allow any of their number to cooperate with, some distant people who are less well off than any among them. For entering into such social cooperation, beneficial to those less well off, would seriously worsen the position of the well-off group by creating relations of presumptive equality between themselves and the worse-off group. In the next chapter 1 shall consider the major recent argument for equality, one which turns out to be unsuccessful. Here we need only note that the connection argument D forges between not deserving natural assets and some conclusion about distributive shares assumes equality as a norm (that can be deviated from with, and only with, moral reason); and hence argument D itself cannot be used to establish any such conclusion about equality.
Unsuccessful in our quest for a convincing positive argument to connect the claim that people don’t deserve their natural assets with the conclusion that differences in holdings ought not to be based upon differences in natural assets, we now turn to what we called the negative argument: the use of the claim that people don’t deserve their natural assets to rebut a possible counterargument to Rawls’ view. (If the equality argument D were acceptable, the negative task of rebutting possible counterconsiderations would form part of the positive task of showing that a presumption for equality holds unoverridden in a particular case.) Consider the following possible counterargument E to Rawls:
1. People deserve their natural assets.
2. If people deserve X, they deserve any Y that flows from X.
3. People’s holdings flow from their natural assets.
Therefore,
4. People deserve their holdings.
5. If people deserve something, then they ought to have it (and this overrides any presumption of equality there may be about that thing).
Rawls would rebut this counterargument to his position by denying its first premiss. And so we see some connection between the claim that the distribution of natural assets is arbitrary and the statement that distributive shares should not depend upon natural assets. However, no great weight can be placed upon this connection. For there are other counterarguments, in a similar vein; for example the argument F that begins:
1. If people have X, and their having X (whether or not they deserve to have it) does not violate anyone else’s (Lockean) right or entitlement to X, and Y flows from (arises out of, and so on) X by a process that does not itself violate anyone’s (Lockean) rights or entitlements,* then the person is entitled to Y.
2. People’s having the natural assets they do does not violate anyone else’s (Lockean) entitlements or rights.
and goes on to argue that people are entitled to what they make, to the products of their labor, to what others give them or exchange. It is not true, for example, that a person earns Y (a right to keep a painting he’s made, praise for writing A Theory of Justice, and so on) only if he’s earned (or otherwise deserves) whatever he used (including natural assets) in the process of earning Y. Some of the things he uses he just may have, not illegitimately. It needn’t be that the foundations underlying desert are themselves deserved, all the way down.
At the very least, we can parallel these statements about desert with ones about entitlements. And if, correctly, we describe people as entitled to their natural assets even if it’s not the case that they can be said to deserve them, then the argument parallel to E above, with “are entitled to” replacing “deserve” throughout, will go through. This gives us the acceptable argument G:
1. People are entitled to their natural assets.
2. If people are entitled to something, they are entitled to whatever flows from it (via specified types of processes).
3. People’s holdings flow from their natural assets.
Therefore,
4. People are entitled to their holdings.
5. If people are entitled to something, then they ought to have it (and this overrides any presumption of equality there may be about holdings).
Whether or not people’s natural assets are arbitrary from a moral point of view, they are entitled to them, and to what flows from them.*
A recognition of people’s entitlements to their natural assets (the first premiss of argument G) might be necessary to avoid the stringent application of the difference principle which would lead, we already have seen, to even stronger property rights in other persons than redistributive theories usually yield. Rawls feels that he avoids this 42 because people in his original position rank the principle of liberty as lexicographically prior to the difference principle, applied not only to economic well-being but to health, length of life, and so on. (However, see note 29 above.)
We have found no cogent argument to (help) establish that differences in holding arising from differences in natural assets should be eliminated or minimized. Can the theme that people’s natural assets are arbitrary from a moral point of view be used differently, for example, to justify a certain shaping of the original position? Clearly if the shaping is designed to nullify differences in holdings due to differences in natural assets, we need an argument for this goal, and we are back to our unsuccessful quest for the route to the conclusion that such differences in holdings ought to be nullified. Instead, the shaping might take place by excluding the participants in the original position from knowing of their own natural endowments. In this way the fact that natural endowments are arbitrary from a moral point of view would help to impose and to justify the veil of ignorance. But how does it do this; why should knowledge of natural endowments be excluded from the original position? Presumably the underlying principle would be that if any particular features are arbitrary from a moral point of view, then persons in the original position should not know they possess them. But this would exclude their knowing anything about themselves, for each of their features (including rationality, the ability to make choices, having a life span of more than three days, having a memory, being able to communicate with other organisms like themselves) will be based upon the fact that the sperm and ovum which produced them contained particular genetic material. The physical fact that those particular gametes contained particular organized chemicals (the genes for people rather than for muskrats or trees) is arbitrary from a moral point of view; it is, from a moral point of view, an accident. Yet the persons in the original position are to know some of their attributes.
Perhaps we are too quick when we suggest excluding knowledge of rationality, and so forth, merely because these features arise from morally arbitrary facts. For these features also have moral significance; that is, moral facts depend upon or arise from them. Here we see an ambiguity in saying that a fact is arbitrary from a moral point of view. It might mean that there is no moral reason why the fact ought to be that way, or it might mean that the fact’s being that way is of no moral significance and has no moral consequences. Rationality, the ability to make choices, and so on, are not morally arbitrary in this second sense. But if they escape exclusion on this ground, now the problem is that the natural assets, knowledge of which Rawls wishes to exclude from the original position, are not morally arbitrary in this sense either. At any rate, the entitlement theory’s claim that moral entitlements may arise from or be partially based upon such facts is what is now at issue. Thus, in the absence of an argument to the effect that differences in holdings due to differences in natural assets ought to be nullified, it is not clear how anything about the original position can be based upon the (ambiguous) claim that differences in natural assets are arbitrary from a moral point of view.
Rawls’ view seems to be that everyone has some entitlement or claim on the totality of natural assets (viewed as a pool), with no one having differential claims. The distribution of natural abilities is viewed as a “collective asset.” 43
We see then that the difference principle represents, in effect, an agreement to regard the distribution of natural talents as a common asset and to share in the benefits of this distribution whatever it turns out to be. Those who have been favored by nature, whoever they are, may gain from their good fortune only on terms that improve the situation of those who have lost out. . . . No one deserves his greater natural capacity nor merits a more favorable starting place in society. But it does not follow that one should eliminate these distinctions. There is another way to deal with them. The basic structure can be arranged so that these contingencies work for the good of the least fortunate.44
People will differ in how they view regarding natural talents as a common asset. Some will complain, echoing Rawls against utilitarianism,45 that this “does not take seriously the distinction between persons”; and they will wonder whether any reconstruction of Kant that treats people’s abilities and talents as resources for others can be adequate. “The two principles of justice . . . rule out even the tendency to regard men as means to one another’s welfare.” 46 Only if one presses very hard on the distinction between men and their talents, assets, abilities, and special traits. Whether any coherent conception of a person remains when the distinction is so pressed is an open question. Why we, thick with particular traits, should be cheered that (only) the thus purified men within us are not regarded as means is also unclear.
People’s talents and abilities are an asset to a free community; others in the community benefit from their presence and are better off because they are there rather than elsewhere or nowhere. (Otherwise they wouldn’t choose to deal with them.) Life, over time, is not a constant-sum game, wherein if greater ability or effort leads to some getting more, that means that others must lose. In a free society, people’s talents do benefit others, and not only themselves. Is it the extraction of even more benefit to others that is supposed to justify treating people’s natural assets as a collective resource? What justifies this extraction?
No one deserves his greater natural capacity nor merits a more favorable starting place in society. But it does not follow that one should eliminate these distinctions. There is another way to deal with them. The basic structure can be arranged so that these contingencies work for the good of the least fortunate.47
And if there weren’t “another way to deal with them”? Would it then follow that one should eliminate these distinctions? What exactly would be contemplated in the case of natural assets? If people’s assets and talents couldn’t be harnessed to serve others, would something be done to remove these exceptional assets and talents, or to forbid them from being exercised for the person’s own benefit or that of someone else he chose, even though this limitation wouldn’t improve the absolute position of those somehow unable to harness the talents and abilities of others for their own benefit? Is it so implausible to claim that envy underlies this conception of justice, forming part of its root notion?*
We have used our entitlement conception of justice in holdings to probe Rawls’ theory, sharpening our understanding of what the entitlement conception involves by bringing it to bear upon an alternative conception of distributive justice, one that is deep and elegant. Also, I believe, we have probed deep-lying inadequacies in Rawls’ theory. I am mindful of Rawls’ reiterated point that a theory cannot be evaluated by focusing upon a single feature or part of it; instead the whole theory must be assessed (the reader will not know how whole a theory can be until he has read all of Rawls’ book), and a perfect theory is not to be expected. However we have examined an important part of Rawls’ theory, and its crucial underlying assumptions. I am as well aware as anyone of how sketchy my discussion of the entitlement conception of justice in holdings has been. But I no more believe we need to have formulated a complete alternative theory in order to reject Rawls’ undeniably great advance over utilitarianism, than Rawls needed a complete alternative theory before he could reject utilitarianism. What more does one need or can one have, in order to begin progressing toward a better theory, than a sketch of a plausible alternative view, which from its very different perspective highlights the inadequacies of the best existing well-worked-out theory? Here, as in so many things, we learn from Rawls.
We began this chapter’s investigation of distributive justice in order to consider the claim that a state more extensive than the minimal state could be justified on the grounds that it was necessary, or the most appropriate instrument, to achieve distributive justice. According to the entitlement conception of justice in holdings that we have presented, there is no argument based upon the first two principles of distributive justice, the principles of acquisition and of transfer, for such a more extensive state. If the set of holdings is properly generated, there is no argument for a more extensive state based upon distributive justice.48 (Nor, we have claimed, will the Lockean proviso actually provide occasion for a more extensive state.) If, however, these principles are violated, the principle of rectification comes into play. Perhaps it is best to view some patterned principles of distributive justice as rough rules of thumb meant to approximate the general results of applying the principle of rectification of injustice. For example, lacking much historical information, and assuming (1) that victims of injustice generally do worse than they otherwise would and (2) that those from the least well-off group in the society have the highest probabilities of being the (descendants of) victims of the most serious injustice who are owed compensation by those who benefited from the injustices (assumed to be those better off, though sometimes the perpetrators will be others in the worst-off group), then a rough rule of thumb for rectifying injustices might seem to be the following: organize society so as to maximize the position of whatever group ends up least well-off in the society. This particular example may well be implausible, but an important question for each society will be the following: given its particular history, what operable rule of thumb best approximates the results of a detailed application in that society of the principle of rectification? These issues are very complex and are best left to a full treatment of the principle of rectification. In the absence of such a treatment applied to a particular society, one cannot use the analysis and theory presented here to condemn any particular scheme of transfer payments, unless it is clear that no considerations of rectification of injustice could apply to justify it. Although to introduce socialism as the punishment for our sins would be to go too far, past injustices might be so great as to make necessary in the short run a more extensive state in order to rectify them.
* Applications of the principle of justice in acquisition may also occur as part of the move from one distribution to another. You may find an unheld thing now and appropriate it. Acquisitions also are to be understood as included when, to simplify, I speak only of transitions by transfers.
* If the principle of rectification of violations of the first two principles yields more than one description of holdings, then some choice must be made as to which of these is to be realized. Perhaps the sort of considerations about distributive justice and equality that I argue against play a legitimate role in this subsidiary choice. Similarly, there may be room for such considerations in deciding which otherwise arbitrary features a statute will embody, when such features are unavoidable because other considerations do not specify a precise line; yet a line must be drawn.
* One might try to squeeze a patterned conception of distributive justice into the framework of the entitlement conception, by formulating a gimmicky obligatory “principle of transfer” that would lead to the pattern. For example, the principle that if one has more than the mean income one must transfer everything one holds above the mean to persons below the mean so as to bring them up to (but not over) the mean. We can formulate a criterion for a “principle of transfer” to rule out such obligatory transfers, or we can say that no correct principle of transfer, no principle of transfer in a free society will be like this. The former is probably the better course, though the latter also is true.
Alternatively, one might think to make the entitlement conception instantiate a pattern, by using matrix entries that express the relative strength of a person’s entitlements as measured by some real-valued function. But even if the limitation to natural dimensions failed to exclude this function, the resulting edifice would not capture our system of entitlements to particular things.
* We certainly benefit because great economic incentives operate to get others to spend much time and energy to figure out how to serve us by providing things we will want to pay for. It is not mere paradox mongering to wonder whether capitalism should be criticized for most rewarding and hence encouraging, not individualists like Thoreau who go about their own lives, but people who are occupied with serving others and winning them as customers. But to defend capitalism one need not think businessmen are the finest human types. (I do not mean to join here the general maligning of businessmen, either.) Those who think the finest should acquire the most can try to convince their fellows to transfer resources in accordance with that principle.
* Might not a transfer have instrumental effects on a third party, changing his feasible options? (But what if the two parties to the transfer independently had used their holdings in this fashion?) I discuss this question below, but note here that this question concedes the point for distributions of ultimate intrinsic noninstrumental goods (pure utility experiences, so to speak) that are transferrable. It also might be objected that the transfer might make a third party more envious because it worsens his position relative to someone else. I find it incomprehensible how this can be thought to involve a claim of justice. On envy, see Chapter 8.
Here and elsewhere in this chapter, a theory which incorporates elements of pure procedural justice might find what I say acceptable, if kept in its proper place; that is, if background institutions exist to ensure the satisfaction of certain conditions on distributive shares. But if these institutions are not themselves the sum or invisible-hand result of people’s voluntary (nonaggressive) actions, the constraints they impose require justification. At no point does our argument assume any background institutions more extensive than those of the minimal night-watchman state, a state limited to protecting persons against murder, assault, theft, fraud, and so forth.
* Is the patterned principle stable that requires merely that a distribution be Pareto-optimal? One person might give another a gift or bequest that the second could exchange with a third to their mutual benefit. Before the second makes this exchange, there is not Pareto-optimality. Is a stable pattern presented by a principle choosing that among the Pareto-optimal positions that satisfies some further condition C? It may seem that there cannot be a counterexample, for won’t any voluntary exchange made away from a situation show that the first situation wasn’t Pareto-optimal? (Ignore the implausibility of this last claim for the case of bequests.) But principles are to be satisfied over time, during which new possibilities arise. A distribution that at one time satisfies the criterion of Pareto-optimality might not do so when some new possibilities arise (Wilt Chamberlain grows up and starts playing basketball); and though people’s activities will tend to move then to a new Pareto-optimal position, this new one need not satisfy the contentful condition C. Continual interference will be needed to insure the continual satisfaction of C. (The theoretical possibility of a pattern’s being maintained by some invisible-hand process that brings it back to an equilibrium that fits the pattern when deviations occur should be investigated.)
* One indication of the stringency of Rawls’ difference principle, which we attend to in the second part of this chapter, is its inappropriateness as a governing principle even within a family of individuals who love one another. Should a family devote its resources to maximizing the position of its least well off and least talented child, holding back the other children or using resources for their education and development only if they will follow a policy through their lifetimes of maximizing the position of their least fortunate sibling? Surely not. How then can this even be considered as the appropriate policy for enforcement in the wider society? (I discuss below what I think would be Rawls’ reply: that some principles apply at the macro level which do not apply to micro-situations.)
* I am unsure as to whether the arguments I present below show that such taxation merely is forced labor; so that “is on a par with” means “is one kind of.” Or alternatively, whether the arguments emphasize the great similarities between such taxation and forced labor, to show it is plausible and illuminating to view such taxation in the light of forced labor. This latter approach would remind one of how John Wisdom conceives of the claims of metaphysicians.
† Nothing hangs on the fact that here and elsewhere I speak loosely of needs, since I go on, each time, to reject the criterion of justice which includes it. If, however, something did depend upon the notion, one would want to examine it mote carefully. For a skeprical view, see Kenneth Minogue, The Liberal Mind, (New York: Random House, 1963), pp. 103–112.
* I have not seen a precise estimate. David Friedman, The Machinery of Freedom (N.Y.: Harper & Row, 1973), pp. xiv, xv, discusses this issue and suggests 5 percent of U.S. national income as an upper limit for the first two factors mentioned. However he does not attempt to estimate the percentage of current wealth which is based upon such income in the past. (The vague notion of “based upon” merely indicates a topic needing investigation.)
* Fourier held that since the process of civilization had deprived the members of society of certain liberties (to gather, pasture, engage in the chase), a socially guaranteed minimum provision for persons was justified as compensation for the loss (Alexander Gray, The Socialist Tradition (New York: Harper & Row, 1968), p. 188). But this puts the point too strongly. This compensation would be due those persons, if any, for whom the process of civilization was a net loss, for whom the benefits of civilization did not counterbalance being deprived of these particular liberties.
* For example, Rashdall’s case of someone who comes upon the only water in the desert several miles ahead of others who also will come to it and appropriates it all. Hastings Rashdall, “The Philosophical Theory of Property,” in Property, its Duties and Rights (London: MacMillan, 191 5).
We should note Ayn Rand’s theory of property rights (“Man’s Rights” in The Virtue of Selfishness (New York: New American Library, 1964), p. 94), wherein these follow from the fight to life, since people need physical things to live. But a right to life is not a right to whatever one needs to live; other people may have rights over these other things (see Chapter 3 of this book). At most, a right to life would be a right to have or strive for whatever one needs to live, provided that having it does not violate anyone else’s rights. With regard to material things, the question is whether having it does violate any right of others. (Would appropriation of all unowned things do so? Would appropriating the water hole in Rashdall’s example?) Since special considerations (such as the Lockean proviso) may enter with regard to material property, one first needs a theory of property rights before one can apply any supposed right to life (as amended above). Therefore the right to life cannot provide the foundation for a theory of property rights.
* The situation would be different if his water hole didn’t dry up, due to special precautions he took to prevent this. Compare our discussion of the case in the text with Hayek, The Constitution of Liberty, p. 136; and also with Ronald Hamowy, “Hayek’s Concept of Freedom; A Critique,” New Individualist Review, April 1961, pp. 28—31.
* Receiving this, we should note, is not the same as receiving the equivalent of what the person causes to exist, or produces. The marginal product of a unit of F1 with respect to factor F2, . . . . , Fn is a subjunctive notion; it is the difference between the total product of F1, . . . , Fn used most efficiently (as efficiently as known how, given prudence about many costs in finding out the most efficient use of factors) and the total product of the most efficient use of F2, . . . , Fn along with a unit less of F1. But these two different most efficient uses of F2, . . . , Fn along with a unit less of F1 (one with the additional unit of F1, the other without it) will use them differently. And F1’s marginal product (with respect to the other factors), what everyone reasonably would pay for an additional unit of F1, will not be what it causes (it causes) combined with F2, . . . , Fn and the other units of F1, but rather the difference it makes, the difference there would be if this unit of F1 were absent and the remaining factors were organized most efficiently to cope with its absence. Thus marginal productivity theory is not best thought of as a theory of actual produced product, of those things whose causal pedigree includes the unit of the factor, but rather as a theory of the difference (subjunctively defined) made by the presence of a factor. if such a view were connected with justice, it would seem to fit best with an entitlement conception.
* Readers who believe that Marx’s analysis of exchange relations between owners of capital and laborers undercuts the view that the set of holdings which results from voluntary exchange is legitimate, or who believe it a distortion to term such exchanges “voluntary,” will find some relevant considerations adduced in Chapter 8.
* Though Rawls does not clearly distinguish 2 from 1 and 4 from 3, I do not claim that he makes the illegitimate step of sliding from the, latter subjunctive to the former indicative. Even so, the mistake is worth pointing out because it is an easy one to fall into, and it might appear to prop up positions we argue against.
* They needn’t be better endowed, from birth. In the context in which Rawls uses it, all “better endowed” means is: accomplishes more of economic value, able to do this, has a high marginal product, and so forth. (The role that unpredictable factors play in this complicates imagining a prior partitioning of the two groups.) The text follows Rawls in categorizing persons as “better” and “worse” endowed only in order to criticize the considerations he adduces for his theory. The entitlement theory does not rest upon any assumption that the classification is an important one, or even a possible one, or upon any elitist presupposition.
Since the entitlement theorist does not accept the patterned principle “to each according to his natural endowment,” he can easily grant that what an exercised endowment brings in the market will depend upon the endowments of others and how they choose to exercise them, upon the market-expressed desires of buyers, upon the alternate supply of what he offers and of what others may substitute for what he offers, and upon other circumstances summing the myriad choices and actions of others. Similarly, we saw earlier that the similar considerations Rawls adduces about the social factors upon which the marginal product of labor depends (Theory of Justice, p. 308) will not faze an entitlement theorist, even though they might undercut the rationale put forth by a proponent of the patterned principle of distribution according to marginal product.
† Supposing they could identify themselves and each other, they might try to exact a larger share by banding together as a group and bargaining jointly with the others. Given the large numbers of persons involved and the incentive for some of the better-endowed individuals to break ranks and reach separate agreements with the worse endowed, if such a coalition of the better endowed is unable to impose sanctions on its defectors it will dissolve. The better endowed remaining in the coalition may use boycott as a “sanction,” and refuse to cooperate with a defector. To break the coalition, those less well endowed would have to (be able to) offer someone better endowed sufficient incentive to defect to make up for his loss through no longer being able to cooperate with the other better-endowed persons. Perhaps it would pay for someone to defect from the coalition only as part of a sizable group of defectors, which defecting group the initial coalition might try to keep small by special offers to individuals to defect from it, and so on. The problem is a complicated one, further complicated by the obvious fact (despite our use of Rawls’ classificatory terminology) that there is no sharp line of cleavage between the endowments of people to determine which groups would form.
* I treat Rawls’ discussion here as one concerning better- and worse-endowed individuals who know they are so. Alternatively, one might imagine that these considerations are to be weighed by someone in the original position. (“If I turn out to be better endowed then . . . ; if I turn out to be worse endowed then. . . .”) But this construal will not do. Why would Rawls bother saying, “The two principles . . . seem to be a fair agreement on the basis of which those better endowed or more fortunate in their social position could expect the willing cooperation of others” (Theory of Justice, p. 15). Who is doing the expecting when? How is this to be translated into subjunctives to be contemplated by someone in the original position? Similarly, questions arise about Rawls’ saying, “The difficulty is to show that A has no grounds for complaint. Perhaps he is required to have less than he might since his having more would result in some loss to B. Now what can be said to the more favored man? . . . The difference principle then seems to be a fair basis on which those better endowed . . . could expect others to collaborate with them . . .” (Theory of Justice, p. 103, my italics). Are we to understand this as: someone in the original position wonders what to say to himself as he then thinks of the possibility that he will turn out to be one of the better endowed? And does he then say that the difference principle then seems a fair basis for cooperation despite the fact that, and even while, he is contemplating the possibility that he is better endowed? Or does he say then that even later if and when he knows he is better endowed the difference principle will seem fair to him at that later time? And when are we to imagine him possibly complaining? Not while in the original position, for then he is agreeing to the difference principle. Nor does he worry, while in the process of deciding in the original position, that he will complain later. For he knows that he will have no cause to complain later at the effects of whatever principle he himself rationally will choose soon in the original position. Are we to imagine him complaining against himself? And isn’t the answer to any later complaint, “You agreed to it (or you would have agreed to it if so originally positioned)” ? What “difficulty” does Rawls concern himself with here? Trying to squeeze it into the original position makes it completely mysterious. And what is thinking of what is a “fair agreement” (sect. 3) or a “fair basis” (p. 103) doing here anyway, in the midst of the rational self-interested calculations of persons in the original position, who do not then knowingly possess, or at any rate utilize, particular moral notions?
I see no coherent way to incorporate how Rawls treats and speaks of the issue of the terms of cooperation between the better and the worse endowed into the structure and perspective of the original position. Therefore my discussion considers Rawls here as addressing himself to individuals outside the original position, either to better-endowed individuals or to his readers, to convince them that the difference principle which Rawls extracts from the original position is fair. It is instructive to compare how Rawls imagines justifying the social order to a person in the worst-off group in an unequal society. Rawls wants to tell this person that the inequalities work out to his advantage. This is told to someone who knows who he is: “The social order can be justified to everyone, and in particular to those who are least favored” (p. 103). Rawls does not want to say, “You would have gambled, and you lost,” or any such thing, even “You chose it then in the original position”; nor does he wish merely to address someone in the original position. He also wants a consideration apart from the original position that will convince someone who knows of his inferior position in an unequal society. To say, “You have less in order that I may prosper,” would not convince someone who knows of his inferior position, and Rawls rightly rejects it, even though its subjunctive analogue for someone in the original position, if we could make sense of this, would not be without force.
* Do the people in the original position ever wonder whether they have the right to decide how everything is to be divided up? Perhaps they reason that since they are deciding this question, they must assume they are entitled to do so; and so particular people can’t have particular entitlements to holdings (for then they wouldn’t have the right to decide together on how all holdings are to be divided); and hence everything legitimately may be treated like manna from heaven.
* I do not mean to assume that all teachers are such, nor even that learning in universities should be graded. All I need is some example of entitlement, the details of which the reader will have some familiarity with, to use to examine decision making in the original position. Grading is a simple example, though not a perfect one, entangled as it is with whatever ultimate social purposes the ongoing practice serves. We may ignore this complication, for their selecting the historical principle on the grounds that it effectively serves those purposes would illustrate our point below that their fundamental concerns and fundamental principles are end-state ones.
* Someone might think entitlement principles count as specially tailored in a morally objectionable way, and so he might reject my claim that the veil of ignorance accomplishes more than its stated purpose. Since to specially tailor principles is to tailor them unfairly for one’s own advantage, and since the question of the fairness of the entitlement principle is precisely the issue, it is difficult to decide which begs the question: my criticism of the strength of the veil of ignorance, or the defense against this criticism which I imagine in this note.
* The difference principle thus creates two conflicts of interest: between those at the top and those at bottom; and between those in the middle and those at bottom, for if those at bottom were gone the difference principle might apply to improve the position of those in the middle, who would become the new bottom group whose position is to be maximized.
* Let the second group have individuals who score half as much on D and have shares twice as large as the corresponding individuals in the first group, where in the first group the ratios between any two individuals’ shares and their scores on D are the same. It follows that within the second group, the ratio of any two individuals’ shares will be the same as the ratio of their scores. Yet between groups this identity of ratios will not hold.
* A process, we might strengthen the antecedent by adding, of the sort that would create an entitlement to Y if the person were entitled to X. I use “Lockean” rights and entitlements to refer to those (discussed in Part I) against force, fraud, and so on, which are to be recognized in the minimal state. Since I believe these are the only rights and entitlements people possess (apart from those they specially acquire), I needn’t have included the specification to Lockean rights. One who believes some have a right to the fruits of others’ labor will deny the truth of the first premiss as stated. If the Lockean specification were not included, he might grant the truth of 1, while denying that of 2 or of later steps.
* If nothing of moral significance could flow from what was arbitrary, then no particular person’s existence could be of moral significance, since which of the many sperm cells succeeds in fertilizing the egg cell is (so far as we know) arbitrary from a moral point of view. This suggests another, mote vague, remark directed to the spirit of Rawls’ position rather than to its letter. Each existing person is the product of a process wherein the one sperm cell which succeeds is no more deserving than the millions that fail. Should we wish that process had been “fairer” as judged by Rawls’ standards, that all “inequities” in it had been rectified? We should be apprehensive about any principle that would condemn morally the very sort of process that brought us to be, a principle that therefore would undercut the legitimacy of our very existing.
* Will the lexicographic priority that Rawls claims for liberty in the original position prevent the difference principle from requiring a head tax on assets and abilities? The legitimacy of a head tax is, suggested by Rawls’ speaking of “collective assets” and “common assets.” Those underutilizing their assets and abilities are misusing a public asset. (Squandering public property?) Rawls may intend no such strong inferences from his terminology, but we need to hear more about why those in the original position wouldn’t accept the strong interpretation. The notion of liberty needs elaboration which is to exclude a head tax and yet allow the other taxation schemes. Assets and abilities can be harnessed without a head tax; and “harnessing” is an appropriate term—as it would be for a horse harnessed to a wagon which doesn’t have to move ever, but if it does, it must draw the wagon along.
With regard to envy, the difference principle, applied to the choice between either A having ten and B having five or A having eight and B having five, would favor the latter. Thus, despite Rawls’ view (pp. 79–80), the difference principle is inefficient in that it sometimes will favor a status quo against a Pareto-better but more unequal distribution. The inefficiency could be removed by shifting from the simple difference principle to a staggered difference principle, which recommends the maximization of the position of the least well-off group, and subject to that constraint the maximization of the position of the next least well-off group, and this point also is made by A. K. Sen (Collective Choice and Social Welfare, p. 138, note) and is acknowledged by Rawls (p. 83). But such a staggered principle does not embody a presumption in favor of equality of the sort used by Rawls. How then could Rawls justify an inequality special to the staggered principle to someone in the least well-off group? Perhaps these issues underlie the unclarity (see p. 83) as to whether Rawls accepts the staggered principle.